Gay v. Fricks
Decision Date | 17 April 1924 |
Docket Number | 8 Div. 607. |
Citation | 99 So. 846,211 Ala. 119 |
Parties | GAY v. FRICKS. |
Court | Alabama Supreme Court |
Appeal from Circuit Court, Jackson County; W. W. Haralson, Judge.
Bill in equity by Homer R. Fricks against J. W. Gay, as administrator of the estate of W. L. Fricks, deceased, and the heirs of said decedent, for specific performance of a contract to convey lands. From a decree overruling demurrer to the bill the respondent administrator appeals. Affirmed.
D. P Wimberly, of Scottsboro, for appellant.
McEniry & McEniry, of Bessemer, for appellee.
The appeal is from a decree overruling demurrers to a bill as amended for specific performance of a contract to convey lands. The decree is of date August 4, 1923, and the appeal was taken within 30 days therefrom. Lewis v. Martin (Ala Sup.) 98 So. 635.
The averments of the amended bill, in substance, as to the consideration for the attempted conveyance of the land by the parent to the son, were that, at the instance of the former the son moved from a distant state to make his residence in Alabama, assisted the father as a clerk, etc.; that, in compliance with his part of the agreement, to such end the father gave him the land and sought to convey the same to the complainant, who took possession thereof and erected thereon the dwelling, occupied it, and assisted the father until the latter's death. The grantor having died, his administrator as a party respondent assigned demurrers to the bill as amended, and prosecutes the appeal.
The deed attempted to be given was not witnessed or acknowledged, grantors signing their own names. After the death of Mr. W. L. Fricks, a person who was present at such subscription of said instrument, signed his name thereto as a witness, and probated the same as provided by statute by making the required certificate before a notary public. This action on the part of said purported witness was nearly two years after the date of the execution of the instrument.
This unauthorized alteration by the purported grantee was "in a material part," yet it did not divest the right, title, or interest, if originally created or granted. And the instrument as it was before alteration continued "to be a memorial of the conveyance and may be adduced in evidence" (in a forum having jurisdiction in the premises) to prove such attempted conveyance of title or interest sought to be created, and was evidence of "a completed and fully executed transaction," or "a memorial of an accomplished and existing fact." Alabama State Land Co. v. Thompson, 104 Ala. 570, 573-575, 16 So. 440-442 (53 Am. St. Rep. 80). The rule is thus stated in the cited case:
See, also, analogy to be found in Hendon v. White, 52 Ala. 597, Arrington v. Arrington, 122 Ala. 513, 26 So. 152, and Wilson v. Kirkland, 172 Ala. 72, 55 So. 174. The announcements made in Alabama State Land Co. v. Thompson, supra, were in a suit for ejectment; yet the rule will be observed by a court of chancery as to proof of an equitable title in a grantee, subject to the cases declaring the burden of proof as to instruments altered, erased, or interlined in material part. Burgess v. Blake, 128 Ala. 105, 28 So. 963, 86 Am. St. Rep. 78; Yarbrough Turpentine Co. v. Taylor, 198 Ala. 202, 73 So. 458; Nance v. Gray, 143 Ala. 234, 38 So. 916, 5 Ann. Cas. 55.
The amended bill admits that the deed set out therein was not so witnessed or acknowledged as to pass the legal title. The facts averred to have...
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